Citation Nr: 9929115
Decision Date: 10/08/99 Archive Date: 10/21/99
DOCKET NO. 97-33 050 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUES
1. Entitlement to an initial evaluation in excess of 10
percent for tinnitus.
2. Entitlement to an initial compensable evaluation for
bilateral hearing loss.
ATTORNEY FOR THE BOARD
C. Crawford, Counsel
INTRODUCTION
The veteran had active service from August 1952 to December
1955 and from February 1963 to August 1978.
This appeal arises from an August 1997 rating decision in
which the Department of Veterans Affairs (VA) Regional Office
(RO) granted entitlement to service connection for bilateral
hearing loss, rated as noncompensably disabling, and
tinnitus, rated as 10 percent disabling.
The issue of entitlement to an initial compensable evaluation
for bilateral hearing loss is addressed in the remand portion
of the decision.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran's appeal has been obtained.
2. The veteran has constant bilateral tinnitus.
CONCLUSION OF LAW
The criteria for an increased evaluation in excess of 10
percent for tinnitus have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. § 4.87, Diagnostic Code 6260
(1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As noted above, in part, in August 1997, service connection
for tinnitus was granted and evaluated at 10 percent,
effective from October 31, 1996. The veteran appealed
therefrom. Accordingly, in this case the veteran was awarded
service connection for a disability and he appealed that
original rating. When a claimant is awarded service
connection for a disability and subsequently appeals the RO's
initial assignment of a rating for that disability, the claim
continues to be well grounded as long as the rating schedule
provides for a higher rating and the claim remains open.
Shipwash v. Brown, 8 Vet. App. 218, 224 (1995).
Because the record indicates that the veteran has submitted a
well-grounded claim. VA, therefore, has a duty to assist the
veteran in the development of facts pertinent to his claim.
38 U.S.C.A. § 5107(a). With respect to the veteran's
tinnitus, it is acknowledged that effective June 11, 1999,
schedular rating provisions pertaining to that evaluation was
amended. Despite the foregoing, the Board of Veterans'
Appeals (Board) finds that based upon the circumstances
presented in this case and because the amendments to
38 C.F.R. § 4.87, Diagnostic Code 6260 would not affect the
rating used in the veteran's case, although a new 38 C.F.R.
§ 4.87 went into effect in June 1999, the veteran is not
prejudiced by a lack of opportunity to provide evidence or
argument in response to the new regulation. For the reasons
set forth below, a remand for further consideration would be
futile. As such, additional development is not warranted.
See generally 64 Fed Reg. 25208 and 25209 (May 11, 1999).
Considering the foregoing and after reviewing the evidence of
record, the Board is satisfied that all necessary evidence
has been received for an equitable disposition of the
veteran's appeal and adequately developed. Id.
In rendering the August 1997 determination, the RO considered
the veteran's service medical records which show that the
veteran was exposed to excessive noise and a February 1997 VA
examination report.
On VA examination in February 1997, the veteran reported
experiencing constant, medium, and loud ringing tinnitus of
the ears for more than 30 years. The veteran matched his
tinnitus to a 4000-Hertz tone at 0-decibel sensation level on
the right and to a 3000-Hertz tone to a 2-decibel sensation
level on the left. The impression was chronic tinnitus,
bilateral and constant.
In relevant part, medical reports from R.J.L., M.D., dated
from August 1996 to March 1997 show that the veteran
complained of tinnitus and that an assessment of tinnitus was
made.
In March 1998 the veteran submitted a medical statement from
J.B., a clinical audiologist. On the evaluation report, the
audiologist noted that the veteran complained of increased
tinnitus in volume over the past year. The veteran also
stated that he had bilateral tinnitus constantly and it
sounded like a rush of air with whistling. After
examination, bilateral tinnitus, present all the time and
increased in amplitude, was noted.
A March 1998 hearing evaluation report from Idaho State
University VA Services is also of record.
The veteran asserts that an increased evaluation in excess of
10 percent is warranted because the tinnitus disability
interferes with his speech and communication. Disability
evaluations are determined by the application of a schedule
of ratings which is based on average impairment of earning
capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate
diagnostic codes identify the various disabilities.
Prior to June 10, 1999, the Rating Schedule provided that
persistent tinnitus as a residual of head injury, concussion,
or acoustic trauma range warranted a 10 percent evaluation.
38 C.F.R. § 4.87(a), Diagnostic Code 6260 (1998). The Rating
Schedule now provides that recurrent tinnitus warrants a
10 percent evaluation. A separate evaluation for tinnitus
may be combined with an evaluation under Diagnostic Codes
6100, 6200, 6204, or other diagnostic code except when
tinnitus supports an evaluation under one of those diagnostic
codes. 38 C.F.R. § 4.87, Diagnostic Code 6260.
Where the law or regulation changes after a claim has been
filed or reopened but before the administrative or judicial
appeal process has been concluded, the version more favorable
to the appellant will apply unless Congress or the Secretary
provided otherwise. See Karnas v. Derwinski, 1 Vet. App. 308
(1991).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
It is noted that it is the defined and consistently applied
policy of the VA to administer the law under a broad
interpretation, consistent, however, with the facts shown in
every case. When after careful consideration of all
procurable and assembled data, a reasonable doubt arises
regarding the degree of disability such doubt will be
resolved in favor of the claimant. 38 U.S.C.A. § 5107;
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990);
38 C.F.R. §§ 3.102, 4.3 (1998).
Regarding the veteran's claim for an increased evaluation in
excess of 10 percent for tinnitus, the Board notes that a 10
percent evaluation, the maximum rating percentage allowable,
has already been assigned. 38 C.F.R. § 4.87(a), Diagnostic
Code 6260, now codified as 38 C.F.R. § 4.87, Diagnostic Code
6260. Thus, under either the new or the old criteria,
entitlement to an increased evaluation in this regard is not
warranted. See Cromley v. Brown, 7 Vet. App. 376 (1995).
Additionally, although it does not appear from the evidence
that the RO has considered the issue of entitlement to an
extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1998),
the Board points out that it is required to address the issue
of entitlement to an extraschedular rating under 38 C.F.R.
§ 3.321 only in cases where the issue is expressly raised by
the claimant or the record before the Board contains evidence
of "exceptional or unusual" circumstances indicating that
the rating schedule may be inadequate to compensate for the
average impairment of earning capacity due to the disability.
See VA O.G.C. Prec. Op. 6-96 (August 16, 1996). In this
case, consideration of an extraschedular rating has not been
expressly raised and the record before the Board does not
contain evidence of "exceptional or unusual" circumstances
that would preclude the use of the regular rating schedule.
The evidence is devoid of any findings suggesting that the
veteran's tinnitus disability causes frequent hospitalization
or interferes with his employment. Therefore, an increased
evaluation on an extra-schedular basis is not warranted. See
Floyd v. Brown, 9 Vet. App. 88 (1996).
ORDER
Entitlement to an initial evaluation in excess of 10 percent
for tinnitus is denied.
REMAND
The veteran also seeks entitlement to a compensable
evaluation for bilateral hearing loss. On VA examination in
February 1997, puretone threshold levels for the frequency
levels of 1000, 2000, 3000, and 4000 Hertz were 0, 10, 40,
and 55 on the right and 10, 60, 65, and 80 on the left,
respectively. The average puretone threshold level was 26 on
the right and 53 on the left and speech recognition was 98 on
the right and 92 on the left. Mild to moderate sensory
hearing loss above 2000 Hertz on the right and moderate to
severe sensory hearing loss above 1500 Hertz on the left was
noted, as well as speech and immittance test results support
the puretone findings.
In March 1998, the veteran submitted a medical statement from
J.B., a clinical audiologist. After examination, an
assessment of mild to moderate sloping sensorineural high
frequency hearing loss, bilaterally, was made. The examiner
also noted that the veteran's hearing ability dropped off
2000 Hertz of the left ear with a more gradual decline of the
right ear. The hearing loss of the left ear was difficult to
fit with amplification because of the essentially normal
hearing at 1500 Hertz and then the rapid decline a half an
octave greater. The veteran's dynamic range was severely
narrowed of the left ear level a narrow window for amplified
speech.
A March 1998 audiometric report from Idaho State University
VA hearing service was also submitted.
In light of the veteran's assertions made on appeal and the
findings contained within the March 1998 medical statement,
which possibly indicates that the veteran's hearing acuity
may be worse than that reflected on the most recent VA
examination, the Board is of the opinion that the adequacy of
the February 1997 VA examination report is unclear. Thus,
another VA audiological examination for disability evaluation
should be conducted in order to evaluate and more accurately
assess the current severity of the veteran's bilateral
hearing loss disorder.
In view of the foregoing, it is the opinion of the Board that
further development is desirable to ensure that the record is
adequate for an informed determination. Accordingly, the
case is REMANDED for the following action:
1. The veteran has the right to submit
additional evidence and argument on the
matter or matters the Board has remanded
to the regional office. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
2. The RO should contact the veteran and
request that he identifies the names,
addresses, and approximate dates of all
VA and non-VA treatment he has received
since March 1998 for hearing loss. With
any necessary authorization from the
veteran, the RO should obtain copies of
pertinent treatment records identified by
him, that have not been previously
secured.
3. The veteran should then be afforded a
VA audiological evaluation with
audiometric studies to determine the
current severity of his hearing loss.
See generally 38 C.F.R. § 4.85 (1999).
4. The RO must then review the veteran's
claim, with consideration of the
provisions of revised schedular criteria.
If it remains denied, the veteran should
be furnished an appropriate supplemental
statement of the case and given the
opportunity to respond.
Thereafter, in accordance with the proper appellate
procedures, the case should be returned to the Board for
further appellate review, if otherwise in order. In taking
this action, the Board implies no conclusion, as to any final
outcome warranted. No action is required of the veteran
until he is notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See The Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446,
§ 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West
Supp. 1999) (Historical and Statutory Notes). In addition,
VBA's Adjudication Procedure Manual, M21-1, Part IV, directs
the ROs to provide expeditious handling of all cases that
have been remanded by the Board and the Court. See M21-1,
Part IV, paras. 8.44-8.45 and 38.02-38.03.
V. L. Jordan
Member, Board of Veterans' Appeals